The U.S. Supreme Court will decide whether minors have the right to buy violent video games in a case that tests whether computer software is guaranteed the same free speech protections as books, newspapers, and magazines.

On Monday, the justices agreed to review a California law that a federal appeals court struck down last year on the grounds that even children and teenagers enjoy free speech rights that are protected by the First Amendment. The case will be heard late this year or in early 2011.

California is one of a string of states that have enacted similar laws restricting minors' rights to buy violent video games--legislation that has been uniformly rejected by the courts. Laws in Illinois and Michigan were blocked by federal judges on First Amendment grounds in 2005, and earlier laws in Indianapolis and Missouri's St. Louis County were also shot down.

The U.S. Supreme Court has not squarely addressed this topic, but it has said in other cases that even minors have some free-expression rights.

Although California's law doesn't target a specific game by name, government lawyers did single out Postal 2, which allows players to go on murderous rampages, by name. And the Federal Trade Commission has previously targeted the makers of "Grand Theft Auto: San Andreas" for having sexually-explicit content.

The California law slaps anyone who sells or rents a "violent video game" to a minor with a $1,000 fine. That was defined as a game in which the player has the option of "killing, maiming, dismembering, or sexually assaulting an image of a human being" in offensive ways. Parents or guardians are still permitted to buy those games for minors.

California Attorney General Jerry Brown said on Monday that the state should be able to place "reasonable restrictions on the distribution of extremely violent material to children."

The Entertainment Software Association, a Washington, D.C.-based trade group that filed many of the lawsuits, on Monday said it thought the justices would agree with the lower courts.

"Courts throughout the country have ruled consistently that content-based regulation of computer and video games is unconstitutional," the ESA said. "Research shows that the public agrees, video games should be provided the same protections as books, movies, and music."

California Gov. Arnold Schwarzenegger signed the video game law in October 2005, but a federal judge blocked (PDF) it from taking effect a few months later. The U.S. Ninth Circuit Court of Appeals upheld that decision.

In May 2009, the state of California asked the Supreme Court to overturn those decisions, saying they were incorrectly decided.

"Like other forms of unprotected speech recognized to date, the extremely violent video games at issue here serve 'no essential part of any exposition of ideas, and are of such slight social value as a step to the truth' that the government must be allowed to regulate their dissemination to minors based upon content, without running afoul of the First Amendment," California said, quoting a famous 1942 Supreme Court opinion.

The Video Software Dealers Association, which subsequently changed its name to Entertainment Merchants Association, says that the state is unreasonably trying to extend obscenity regulations--aimed at explicit pornography--to computer software.

"In over 50 years of obscenity jurisprudence, this court has never applied the obscenity doctrine outside the context of sexual speech," the association told the court. "What the state proposes in this case would effect a sea change in the permissible regulation of all media--including books, movies, and television programs--that contain violent content and are accessible to minors."

Adam Thierer, president of the free-market Progress and Freedom Foundation, said Monday that he hopes the justices agreed to hear this case to protect free speech, "not to overturn 10 years of solid, sensible lower court decisions granting video games the same First Amendment protections as books, film, music and other forms of entertainment."

About the author

Declan McCullagh is the chief political correspondent for CNET. You can e-mail him or follow him on Twitter as declanm. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.
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